Idmiston Ltd v. Asian Master Enterprises Ltd

CACV000048A/1988

BETWEEN

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BETWEEN

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BETWEEN

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Coram: Hon. Cons, V.-P., Kempster & Clough, JJ. A.

Date of hearing: 15th November, 1988.

Date of delivery of judgment: 15th November, 1988.

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J U D G M E N T

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Cons, V.-P.:

1. The Plaintiff Company instituted three actions to recover payment of loans which had earlier been assigned to it from a sister company. The Defences filed alleged that repayment of the loans had been made by a series of transactions involving the Plaintiff's parent company and another company registered in Liberia. By Replies the Plaintiff Company raised the question of fraud, suggesting its perpetration by two gentlemen who held a controlling interest in the Plaintiff Company at the material time and in other companies also involved. The fraud was said to be by way of a scheme to syphon off the assets of the parent company into the private hands of the two gentlemen.

2. The judge below was satisfied that there was considerable evidence that both the Plaintiff and the parent company were victims of such a fraud and he refused the application by the three Defendant Companies for security of costs under Section 357 of the Companies Ordinance.

3. On the 9th June the Defendants appealed to this Court, then slightly differently constituted. The main grounds of argument put forward were firstly that the fraud did not bring about the lack of means in the Plaintiff Company, which had never had any assets of its own other than nominal; and secondly that the judge was wrong to consider what I termed at the time "the overall fraud" of a situation, rather the particular fraud aimed at the Plaintiff. I took the view that although there was possibly some substance in the first ground of appeal, the judge was quite properly entitled to look at the matter in the round, and I suggested that his discretion should not be interferred with. My two brothers agreed.

4. We are now asked to give leave for the three Defendant Companies to appeal to Her Majesty in Council. It is of course an interlocutory matter and the granting of leave is a matter for our discretion, which should only be exercised if the questions raised are questions of great general or public importance or otherwise ought to be submitted to Her Majesty in Council.

5. Five questions are put forward in the Notice of Motion as being of that character. In my view however, they do no more than reflect the particular circumstances on which the appeal was argued at the last hearing. To my mind they do not raise matters of great general or public importance.

6. In the alternative Mr. Chan, who appears now for the Defendant Companies, suggests that they fall within the phrase "or otherwise", and relying on comments of Mills-owens J. in Hui Shiu Wing v. Cheung Yuk Lin [1968] H.K.L.R. 176 he contends that it is sufficient if the case presents any unusual feature either of law or fact. To some extent I accept that the features in the present instance are unusual, but I do not think they come anywhere near to being exceptional circumstances such as would require us to exercise our discretion to pass the matter to Their Lordships of the Privy Council.

7. For my part I would therefore refuse the application.

Kempster, J.A.:

8. I too would refuse the application for' the reasons given by my Lord.

Clough, J.A. :

9. I also agree and have nothing to add.

Representation:

K.S. Edward Chan (M/s Tai, Tang & Chong) for Defendants/Applicants in all three appeals

Barrie Harlow (M/s Hampton, Winter & Glynn) for Plaintiff/Respondent in all three appeals